M/S. Pragati Pratisthan Private ... vs Ashok Kumar Agarwal
2021 Latest Caselaw 5018 Cal

In the High Court at Calcutta Civil Revisional Jurisdication Appellate Side

Present:-

The Hon'ble Justice Subhasis Dasgupta.

CO. No. 1599 of 2019

M/s. Pragati Pratisthan Private Limited Vs.

Ashok Kumar Agarwal.

For the Petitioner/Plaintiff : Mr. Krishna Das Podder, Adv.

For the Opposite Party         : Mr. R. A. Agarwal, Adv.
                                 Mr. Ananda Gopal Mukherjee, Adv.
                                 Ms. N. Pal, Adv.


Heard On                       :13.09.2021.

Judgment                       : 24.09.2021



Subhasis Dasgupta, J:-

The subject matter of challenge is against the order dated 11th April,

2019 passed by the learned Judge, IVth Bench, Presidency Small Causes

Court at Calcutta in Ejectment Suit No. 281 of 2017, allowing amendment

of written statement of defendant.

Mr. Krishna Das Podder, learned advocate representing the

petitioner/plaintiff, submitted that learned court below had erroneously

allowed the prayer for amendment of the written statement, without truly

appreciating the schedule of amendment proposing amendment of written

statement as many as three (3) counts, and by reason of such amendment

of the written statement being allowed, plaintiff had been irretrievably

prejudiced by denying him the opportunity of extracting the admission

from the defendant. More so, the proposed amendment of written

statement pertaining to serial no. 1 of schedule of amendment, according

to Mr. Podder, would seek to displace the plaintiff completely from his

case.

Reliance was placed by the learned advocate for the petitioner on a

decision reported in AIR 1977 SC 680 delivered in the case of M/s. Modi

Spinning & Weaving Mills Co. Ltd. and Anr. Vs. M/s. Ladha Ram &

Co. , wherein the Apex Court affirmed the decision of the concerned High

Court rejecting the application for amendment of written statement, as the

same would displace the plaintiff completely from the admission made by

the defendant in his written statement.

As regards the proposed amendment appearing in serial nos. 2 and

3 of schedule of amendment, learned advocate for the petitioner contended

that there had been no necessity for amendment of written statement with

reference to of serial nos. 2 and 3, because in the original written

statement, it was already there, and as such it was an unnecessary

exercise made by the defendants/opposite parties, which learned court

below ought not to have allowed. It was also contended by Mr. Poddar

that it was a suit for recovery of kash possession of the suit premises, in

respect of one room under possession of the defendant/opposite party in

the first floor of the building, upon resorting to Section 6 of the West

Bengal Premises Tenancy Act, 1997. The defendant/opposite party

categorically admitted in his written statement that he was tenant in

respect of one room in the first floor of the building, and has been using

and occupying the said premises for three decades by paying rent therefor

without any default. Such admission of defendant, if allowed to be resiled

and/or withdrawn taking help of proposed amendment of the written

statement, so far as serial no. 1 of schedule of amendment is concerned,

the petitioner/plaintiff would be completely displaced from his suit, and

further would be deprived of the opportunity of extracting the admission,

deliberately and consciously made in the written statement, vide para 9 of

the written statement.

Mr. Poddar also urged before the court that denial of ownership

plaintiff/petitioner by the opposite party/tenant, and consequently denial

of tenancy by the opposite party, not being raised in course of hearing of

the petition filed by the opposite party/defendant under Sections 7(1) and

7(2) of the West Bengal Premises Tenancy Act, the petition for amendment

of written statement was nothing, but harrasive, purposive and simply to

displace the petitioner/plaintiff from the instant suit.

Capital was sought to be derived by the learned advocate for the

petitioner from a further decision reported in (2009) 10 SCC 84 delivered

in the case of Revajeetu Builders & Developers vs. Narayanaswamy &

Sons & Ors., in order to establish that necessary factors for making

consideration of the prayer for amendment of the written statement even

could not be taken into account by the court below.

Mr. Ananda Gopal Mukherjee, learned advocate for the opposite

party/tenant being assisted by Mr. R. A. Agarwal raised challenges against

the submissions advanced by the learned advocate for the petitioner

submitting that the learned court below rightly exercised its power under

Order VI Rule 17 of the Code of Civil Procedure, by allowing the

amendment of the written statement, so that the real controversy between

the parties could be effectively and properly adjudicated. It was thus

argued by the opposite party that it is a settled law that even if there is

admission in the written statement, it would be still open to the party to

approach the Court by way of filing an application for amendment, and

further that amendment of the pleadings may be allowed at any stage of

the proceedings, unless serious prejudice, of irreparable loss is caused to

the other side.

Reliance was sought to be made by learned advocate for the

opposite party on a decision reported in AIR 1983 SC 462 rendered in the

case of Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay & Anr., that

admission made by a party may be withdrawn or may be explained away.

Countering the submissions of the learned advocate for the

petitioner, Mr. Mukherjee further submitted that when on carefully

scrutiny of the case record, the Court came to a definite finding that

prayer for amendment of the written statement was necessary for deciding

the real question in controversy, and the same being formal in nature,

ultimately allowed the prayer for amendment of the written statement

observing therein further that it will not change the nature and character

of the suit property; the same being made upon due exercise of judicial

discretion, it would remain unaltered.

Incidentally it was also submitted that since the schedule of the

plaint suffered from vagueness, wherefrom recovery of possession had

been sought for taking recourse to Section 6 of the West Bengal Premises

Tenancy Act, 1997, there arose the necessity to seek for amendment of the

written statement, and learned court below in due exercise of its judicial

discretion, allowed the amendment of the written statement taking into

account that even if a party or its counsel was inefficient in setting out its

case initially, the shortcomings could certainly be removed generally by

taking appropriate steps, subject to payment of costs, and such error was

not incapable of being rectified, unless the remedial steps would not

unjustifiably injure rights accrued to the opposite party.

Reliance was placed on a decision reported in AIR 1978 SC 484

delivered in the case of M/s. Ganesh Trading Co. vs. Moji Ram .

The Court is thus required to address the solitary issue whether the

prayer for amendment of the written statement was rightly allowed or not.

It requires no mention that some of the important factors are

necessarily to be kept in mind by the Court, while addressing a prayer for

amendment of pleadings under Order VI Rule 17 of C.P.C. Such factors

though illustrative, but are not exhaustive. Yet are significantly relevant

for the determination of the present issue under reference, which are

mentioned hereinbelow, as shown in para 63 of a decision referred above

in the case of Revajeetu Builders & Developers (supra).

63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

Such important factors, thus necessary to be considered by the

Court, while taking up prayer for amendment of the pleadings by either of

the parties to this case, were even reinforced in the decision of the Apex

Court reported in (2011) 12 SCC 268 delivered in the case of State of

Madhya Pradesh Vs. Union of India an Anr. para 10, and subsequently

in case of Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria & Ors.

reported in (2015) 10 SCC 203, para 20.

Therefore, when it is the settled proposition of law that some

important factors, as set out hereinabove, have to be necessarily taken

into account by the court dealing with amendment of the pleadings under

Order VI Rule 17 of the Code of Civil Procedure, the learned court below is

thus, obliged to follow the same in discharge of its judicial authority.

Order VI Rule 17 consists of two parts. First part is discretionary

and leaves it to the court to order of amendment of pleadings, whereas the

second part is imperative and enjoins the court to allow all amendments,

which are necessary for the purpose of determining the real question in

controversy between the parties.

The real controversy surfaced in the instant case hinges upon the

issue pertaining to a prayer for recovery of possession in respect of a suit

premises, shown in the schedule of the plaint. For the vagueness of the

schedule, if there be any, the consequent effect thereof is likely to suffer

by the plaintiff/petitioner, who admittedly invited suit taking recourse to

Section 6 of the West Bengal Premises Tenancy Act, 1997, on the ground

of reasonable requirement, subletting etc, upon prior determination of the

tenancy by issuing a notice therefor to tenant/opposite party.

So far as serial no.1 of the proposed amendment, as appearing in

schedule of the amendment, is concerned, it appears that under the

behest of amendment, the opposite party/defendant had sought for

amendment of written statement, thereby resiling/retracting/withdrawing

his own admission giving a consequent threat to the nature and character

of the suit instituted against the opposite party/defendant.

There lies no controversy that the court has undoubted power to

allow amendment of pleadings at any stage of the proceedings, as

mentioned in Order VI Rule 17 of the Code of Civil Procedure, and

amendment of the pleadings should not be disallowed, unless serious

prejudice or irreparable loss is caused to the other side.

The pertinent question, thus falls for determination is whether the

opposite party/tenant is permitted to retract from his own admission so as

to dispute his tenancy, even after making categorical admission in para 9

of the written statement, and further also after the decision of petition,

filed by defendant/opposite party under Sections 7(1) and 7(2) of West

Bengal Premises Tenancy Act, 1997.

In the decision referred by opposite party reported AIR 1983 SC

462 rendered in the case of Panchdeo Narain Srivastava (supra), the

plaintiff described himself in the plaint as a son of the uterine brother of

one persons, subsequently the plaintiff moved an application for

amendment of the plaint, inter alia, seeking deletion of the word 'uterine'

from the plaint. The Trial Court granted the application for amendment,

which was set aside by the High Court. The Apex Court, however,

disagreed with the decision rendered by the High Court, holding that by

amendment, an admission of fact can be withdrawn. The instant case, as

presented hereinabove, is this factually distinguishable, and such decision

would hardly find any scope to be applied over the facts and

circumstances of the case.

No doubt the purpose of amendment of the pleadings is to promote

the ends of justice, subject to such terms as to cost and giving to all

parties concerned necessary opportunities to meet the exact situation

resulting for amendment.

Upon visualizing serial no.1 of the proposed schedule of amendment

withdrawing admission, and thereby retracting its own categorical

admission, contained in the written statement, vide para 9, such error,

whatever may be the reasons therefor, is of such a magnitude, having

regard to the nature and character of the suit, is incapable of being

rectified in view of the provisions contained in Section 58 of the Evidence

Act.

The decision referred by learned advocate for the opposite party

being AIR 1978 SC 484, delivered in the case of M/s. Ganesh Trading

Co. (supra) is this distinguished, as regards its applicability over the facts

and circumstances of this case.

The proposed amendment as regards serial no.1 of the schedule of

amendment would definitely seek to displace the plaintiff completely from

the admission made by the defendant, and plaintiff would thus be

irretrievable prejudiced by being denied the opportunity of extracting the

admission from the defendant. Such proposition of law as decided in AIR

1977 SC 680 delivered in the case of M/s. Modi Spinning & Weaving

Mills Co. Ltd. (supra) would squarely apply in the present facts and

circumstances of the case, so far as the serial no.1 of the schedule of the

proposed amendment is concerned.

As regards the scope of withdrawing and/or retracting one's own

admission in the pleadings, the Apex Court in the case of Ram Niranjan

Kajaria Vs. Sheo Prakash Kajaria & Ors. reported in (2015) 10 SCC

203 held upon reiterating the decision of Nagindas Ramdas Vs.

Dalpatram Ichharam reported in (1974) 1 SCC 242 and at the same

time overruling the decision of the Apex Court on this point reported in

1984 Supp SCC 594 in the case of Panchdeo Narain Srivastava Vs.

Jyoti Sahay that categorical admission made in the pleadings cannot be

permitted to be withdrawn by way of an amendment. The relevant

observation of the Apex Court made in para 22 of decision rendered in the

case Ram Niranjan Kajaria (supra) may be quoted hereinbelow:

22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam. To quote para 27: (SCC pp.251-52):

"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence

of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive.

They can be shown to be wrong." (Emphasis supplied)

The law is thus quite settled by Apex Court as regards the

permissibility of withdrawal of admission appearing in pleadings, by laying

down the ratio that the admission in pleadings or judicial admission,

admissible under Section 58 of the Evidence Act, made by the parties or

their agents at or hearing of the case stand on a higher footing, than

evidentiary admissions.

Such admission of defendant/opposite party, as regards making

admission of tenancy disclosed in para 9 of written statement, under the

plaintiff/petitioner would be binding against him.

Learned court below, for the reasons mentioned hereinabove, was

not justified in allowing the prayer for amendment of the written

statement, as appearing in serial no.1 of the proposed schedule of

amendment. With regard to the serial nos. 2 and 3 of proposed schedule

of amendment, it appears that serial no.2 is relatable to consolidation of

facts making certain deletion of facts, but not relatable to withdrawal of

any earlier admission made in any paragraphs of the written statement,

and if such amendment is allowed, it would not cause any prejudice to

either of the parties to this case, in view of nature and character of the

suit. The proposed amendment, as regards the serial no.3 of the schedule

of the amendment, it appears that the "suit premises" was sought to be

substituted by the words "place of business", and that being the entirety

of the circumstances contained in serial nos.2 and 3, it is purely formal in

nature.

In the result, the prayer for amendment of serial no.1 of the

schedule of amendment of written statement appears to have been

erroneously reached without adhering to the parameters laid down by the

Apex Court, and the settled proposition of law, decided by the Apex Court

on such issue.

Accordingly, that part of the impugned order dealing with proposed

prayer for amendment of written statement appearing in serial no.1 of

schedule of amendment is set aside only.

The amendment of written statement with regard to serial nos. 2

and 3 of the schedule of amendment will, however, remain unchanged.

The impugned order is thus modified to the extent mentioned herein

above.

Opposite party is given liberty to furnish amended copy of written

statement in terms of this judgment before the learned court below within

four (04) weeks from the date of communication of this order.

With this observation and direction the revisional application stands

disposed of.

Urgent certified copy of this order and judgment, if applied for, be

given to the appearing parties as expeditiously as possible upon

compliance with the all necessary formalities.

(Subhasis Dasgupta, J.)